Famous Human Rights Lawyer on Moratorium

Live and let live

THONGBAI THONGPAO

Efforts to lift capital punishment in all countries by non-governmental organisations have been going on for decades and substantial progress has been made over the years. In the latest move, a motion has been submitted to the UN General Assembly for a vote on the issue.

Actually, the UN has made its stand clear that it disagrees with the death penalty. It runs against Item 3 of the Universal Declarations of Human Rights which provides: "Everyone has the right to life, liberty and security of person." Likewise, the 1966 International Covenant on Civil and Political Rights which Thailand ratified in October 1996, prescribes: "Every human being has the inherent right to life. This right shall be protected by law."

It also provides: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence, and sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women".

So far, Thai constitutions and the Penal Code have been in compliance by these commitments. We don't execute a person under 18 or a pregnant woman. Our law also grants inmates on death row the right to seek a royal pardon within 60 days from the date the Supreme Court hands down its judgement and execution may take place only after royal discretion. In most cases, the royal pardon is granted, and it is only once in a blue moon that the appeal is turned down.

From Dec 12, 2003 until now, no execution has been carried out in Thailand. There are now some 900 prisoners on death row, all of whom are either in the process of seeking the royal pardon or waiting for the Supreme Court's rulings. Throughout my counselling career, I have represented three suspects facing capital punishment for manslaughter by martial court. In these cases, I sought the royal pardon on their behalf and they were all granted. All three are now free men leading a normal life. One of them even entered politics by running for Parliament thanks to the boundless mercy of His Majesty the King.

Last month, I met Prof Speedy Rice, the representative of World Coalition Against The Death Penalty, who is here on a worldwide campaign to lobby for the lift of the death penalty, and Danthong Breen from the Union for Civil Liberty, to discuss the issue. According to them, 60 countries have abolished the punishment for all crimes, 11 have done so for all but exceptional crimes such as wartime crimes, and 32 still retain the death penalty in law but have not carried out any executions for the past 10 years or more and are believed to have a policy or established practice of not carrying out executions. This makes a total of 133 countries which have abolished the death penalty in law or practice. Sixty-four other countries, Thailand included, retain and use the death penalty.

Prof Rice also met with Thirapat Serirangsan, a minister to the Prime Minister's Office, and Charan Phakdithanakul, permanent secretary for Justice, who both agree with the principle and pledged to push the issue.

Under the Thai law, capital crimes include offences against life or national security, drug trafficking, and rapes which result in deaths.

In my view, despite the letter of the law, Thailand appears to be more willing now than ever to lift the penalty. Not only does the punishment run against our international commitments, it is also not acceptable under Buddhism, the religion of the majority of the people. Since almost all of our judges are Buddhists who uphold the value of life and the instruction against killing, the death penalty is handed down only in the most violent of cases and on the cruelest of criminals. Even after it is passed, the prisoner may appeal to the King. All of our constitutions provide that the King has the prerogative to grant a pardon and in practice His Majesty has always had mercy of them.

As this year is an auspicious one in which Thais celebrate His Majesty the King's 80th birthday, the government should therefore rethink the issue and consider lifting the penalty as a gift to His Majesty. But since the UN General Assembly is nearing, we might not be able to abolish it in time. At the least, if a vote on the issue is to be cast at the meeting, I hope Thailand at least abstains and drops its support for the penalty.

Bangkok Post, Sunday 18th November 2007

The Issue of Shackling

In July 2005 Thailand presented to the Human Rights Committee in Geneva its report on the implementation of its obligations under the Covenant on Civil and Political Rights. In its response the Human Rights Committee issued a stern admonition that the State "should guarantee the right of detainees to be treated humanely and with respect for their dignity". The issue of shackling was given special attention; "The use of shackling and long period of solitary confinement should be stopped immediately". Yet, two years later prisoners condemned to death are still permanently shackled. UCL has drawn attention again and again to the admonition of the Human Rights Committee and the obligation under international law to implement the terms of the Covenant. The response has been that the prison authorities are 'not yet ready' to fulfill their obligation.

To the shame of the prison authorities, prisoners themselves are taking legal initiatives against the unjust practice. A first case was submitted to the Administrative Court against the Corrections Department on the grounds that perpetual shackling is against Correctional Policy Guidelines, and causes mental stress and physical difficulties to prisoners. Photographic evidence of prison conditions demonstrated that shackling could not be claimed necessary to ensure the secure detention of prisoners. The Court immediately ordered that shackles be removed from the prisoner who submitted the complaint while the case was under consideration. On this decision another prisoner also invoked legal action. In this second case the decision of the Court has already been handed down, that perpetual shackling is indeed illegal. At present fifty prisoners are bringing similar action. If the precedent has been established it is difficult to see how a favourable decision will not be granted in other cases.

A worrying consequence is that prisoners whose shackles have been removed are being restricted to their cell block, unlike shackled prisoners who are free to go outside.
The Corrections Department is appealing the case where a decision has already been given. Can this be considered acceptable given the ruling of the Human Rights Committee two years ago?

And does the Corrections Department intend to oppose the legal case of every individual prisoner who seeks redress under the law?

Text of Moratorium on Death Penalty

United Nations A/C.3/62/L.29

General Assembly Distr.: Limited
1 November 2007
Original: English

Sixty-second session

Third Committee

Agenda item 70 (b)

Promotion and protection of human rights: human
rights questions, including alternative approaches
for improving the effective enjoyment of human rights
and fundamental freedoms

Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Micronesia (Federated States of), Moldova, Monaco, Montenegro, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Samoa, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Timor-Leste, Turkey, Tuvalu, Ukraine, United Kingdom of Great Britain and Northern Ireland, Uruguay, Vanuatu and Venezuela (Bolivarian Republic of): draft resolution

Moratorium on the use of the death penalty

The General Assembly,

Guided by the purposes and principles contained in the Charter of the United Nations, Recalling the Universal Declaration of Human Rights,[1] the International Covenant on Civil and Political Rights[2] and the Convention on the Rights of the Child,[3]

Recalling also the resolutions on the question of the death penalty adopted over the past decade by the Commission on Human Rights in all consecutive sessions, the last being its resolution 2005/59,[4] in which the Commission called upon States that still maintain the death penalty to abolish it completely and, in the meantime, to establish a moratorium on executions,

Recalling further the important results accomplished by the former Commission on Human Rights on the question of the death penalty, and envisaging that the Human Rights Council could continue to work on this issue,

Considering that the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the death penalty’s deterrent value and that any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable,

Welcoming the decisions taken by an increasing number of States to apply a moratorium on executions, followed in many cases by the abolition of the death penalty,

1. Expresses its deep concern about the continued application of the death penalty;

2. Calls upon all States that still maintain the death penalty to:

(a) Respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

(b) Provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing the protection of the rights of those facing the death penalty;

(c) Progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed;

(d) Establish a moratorium on executions with a view to abolishing the death penalty;

3. Calls upon States which have abolished the death penalty not to reintroduce it;

4. Requests the Secretary-General to report to the General Assembly at its sixty-third session on the implementation of the present resolution;

5. Decides to continue consideration of the matter at its sixty-third session under the same agenda item.

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[1] Resolution 217 A (III).

[2] See resolution 2200 A (XXI), annex.

[3] United Nations, Treaty Series, vol. 1577, No. 27531.

[4] See Official Records of the Economic and Social Council, 2005, Supplement No. 3 and

corrigenda (E/2005/23 and Corr.1 and 2), chap. II, sect. A.